Denham v. Kirkpatrick

64 Ga. 71

• Court: Supreme Court of Georgia
• Decided: September 15, 1879
• Status: Published

Opinion

Jackson, Justice.

1. When this case for damages, arising upon misrepresentation of title of defendant in fi.fa. to his land, to the extent of spreading too heavy a cloud over it, was transferred to the superior court from the county court as involving title to land, the entire cause was transferred, and the superior court was right to retain jurisdiction of the entire case.

2. Not only our Code of laws (omitted from the Code of 1873 because there was at that date no law against usury, but found in the Code of 1868, §2025) but frequent rulings of this court, makes deeds for land tainted with usury void, if used to transfer title; and no recovery in ejectment could be had on such a deed.

We have not decided that such a deed with bond to re-convey would be good for anything as an equitable mortgage. The nearest approach to such a decision is to be found in Sugart vs. Mayes, 54 Ga., 554; but there it is merely intimated that such might be the equity of the case. However that may be, it is quite certain that the deed could only be held good as a security for the legal part of the consideration, and that in this case, under the act of 1875, p. 105, is only the principal. So there, is no error in the ruling of the court on these points.

3. But the main question in the case is, whether the-pleadings and facts proven under them make such a case as-entitled the plaintiff to recover ? The defendant says that the suit is for slander of title under section 3025 of the Code, and that the facts do not sustain such an action, and that the charge was inapplicable to the action for slander of title. The reply is that the action is complaint, or, as it would have been termed at common law, an action on the case founded on equitable principles, for the recovery of money which in good conscience the plaintiff ought to recover. The declaration alleges, in substance, that defendant represented at the sale of the plaintiff’s property by the sheriff that he held an equitable mortgage’thereon for fifteen hundred dollars, whereas, in truth and fact, if he held a mortgage at all, it was for only one thousand dollars ; that he made this representation with a fraudulent view and intent to bid for the land at the sale and to get it at a' less price than it was worth ; that’he did bid, and it was knocked off at a less price to him, and that plaintiff was entitled to-recover from him the difference between what the land brought and what it would have brought but for his false and unfair statement.' The allegata andprobata agree better in this case than any I believe I have ever reviewed, and if the allegata entitle plaintiff to recover, his case wag fully made out by the proof.

If one interferes with a judicial sale, or any other sort of sale, by statements by which he gets the property at less than others would have given, he must state the truth, the whole truth, and nothing but the truth. This defendant stated that he had an equitable mortgage for fifteen hundred dollars, whereas five hundred of it was interest for the loan of one thousand for one year ; which made the truth to be, if he had any mortgage at all, that he had one only for one thousand dollars. Thereby he got the land for $500.00 less than another bidder swore he would have given for it. He ought not ex aequo et bono to keep this money, and the verdictis just and right. When one thus interferes with a judicial sale particularly, he must not cloud the title of defendant in fi.fa, without stating all the truth, especially must he not do so for the purpose of getting an advantage at the sale at the expense of other bidders and of the defendant in fi.fa.

In respect to the view that the pleadings in this state have been held too loose in past adjudications, and that they are too loose here, we have but to say that whatever they may have been in other cases, in this the plaintiff has most clearly and distinctly set forth his cause of action, giving in it every fact which makes his equitable case on the declaration full and complete, and ample to authorize a recovery. This is all that he has ever been required to do in this state since the judiciary act of 1799. Cobb’s Digest, pp. 470-486.

And the struggle has always been with our legislature to make pleadings as simple as possible ever since that act of 1799, and so far from our courts innovating upon law when they sustained such pleadings, they have co-operated with the law-making power when they have done so ; and have generally endeavored to conform to special pleading' as far as conscience would permit them to go. And now that the legislature, not the courts on their own motion, have broken down the barriers between law and equity by distinctly enacting that no suitor shall be driven into equity to enforce any right which law or equity may give him, but may elect either forum — Code, §3082 — there can be ho doubt of the legality of this suit and the rightfulness of this recovery • and if anybody finds fault and wishes the law changed, let such an one go to the law-making and not to the law-expounding authorities.

The verdict is not for punitive, but actual damage; therefore it does not matter what the court charged on that subject, though it would seem, as this was a tort, or at least in-the nature of a tort, the judge was not far wrong under our Code, section 3066.

4. The substance of the verdict was not altered. Only the interest found by the jury to be paid as damage separately from the principal was consolidated with it in the presence of, and by the consent of, the jury before their discharge.

Judgment affirmed.